Replying to McGinnis and Rappaport

As I’ve noted, John McGinnis and Mike Rappaport have responded to my post “The language of the law” is not actually a language. They disagree with what I said, and in this post I will return the favor.

McGinnis and Rappaport make two basic points. First, they say that I did not address their argument that The Language of the Law is a technical language and that as a result there is a gap in my analysis. Second, they dispute my argument that the rules of legal interpretation are not analogous to the cognitive processes that underlie comprehension.

The Language of the Law as a technical language

McGinnis and Rappaport accept the point in my earlier post that legal language—or The Language of the Law, to use their preferred term—is not a full-blown language comparable to Hindi or Pirahã. Their paper recognizes that The Language of the Law is “not wholly independent of ordinary language”, and they describe it as “an overlay on ordinary language.” And they don’t take issue with the statement by Peter Tiersma that I quoted: “If we isolate what is distinctive in legal English, leaving out features of ordinary speech, what remains is far too incomplete to function as a language.”

This is important because McGinnis and Rappaport also don’t disagree with my statement that the strong version of their analysis (meaning the version that assumes a “wide conception” of language) relies on their analogy between The Language of the Law and ordinary language. So in order to defend that portion of their argument, it’s essential for McGinnis and Rappaport to show that their analogy is valid. I don’t think they’ve done so.

Their primary contention on this point is that I didn’t deal with their argument that The Language of the Law is a technical language:

There is little doubt that there are technical languages: many authors have recognized them and many authors have maintained that the language of the law is one such technical language. Goldfarb, however, never explains how he would account for such languages. To be persuasive, he must provide such an account and then explain why our arguments about the language of the law do not follow under his account.

It’s true that I didn’t discuss the argument that The Language of the Law is a technical language, but that’s of no consequence because the technical-language argument has no substance.

While legal language is sometimes referred to as a “technical language,” that mere fact doesn’t do the work that McGinnis and Rappaport need from it. Sticking a label on legal language doesn’t determine its characteristics. Neither prairie dogs nor hot dogs are dogs, and the fact that mahi-mahi is also called “dolphin” doesn’t make mahi-mahi a mammal. (Cf. Arnold Zwicky, Labels are not definitions.) By the same token, merely calling legal languageuse-characteristics a technical language doesn’t determine what it is. If McGinnis and Rappaport want to validate their analogy between The Language of the Law and ordinary language, they need to identify the points of similarity that they see between the two things. But they’ve made no effort to do that.

Nevertheless, I’m happy to explain what I think about the notion of legal language as constituting a technical language. I’ll start with the semantics of the phrase itself. As with two of the uses of the language of the law that I quoted in my original post, I regard the phrase a technical language as essentially a rhetorical trope that exploits two of the different senses of language. It combines the semantics of languageuse-characteristics with the grammatical form associated with languagedialect, which converts it from a mass noun to a count noun. The result is a sort of hybrid in which the former sense takes on overtones of the latter.

As for the concept that is denoted by the phrase technical language: It’s obviously true that legal language has a number of distinctive features; Peter Tiersma catalogs many of them here (scroll down to Part II: The Nature of Legal Language). The features that are the most important with respect to legal interpretation is the existence of a large technical vocabulary and a vocabulary of ordinary words that can be used in specialized legal senses. The next most important feature is the propensity toward complex and even convoluted syntactic structures, which can be hard to understand and are often structurally ambiguous.

However, I don’t think that the features of legal language provide a sufficient basis for McGinnis and Rappaport’s conclusions. I agree with Tiersma’s statement (quoted near the top of this post) that if those features are considered in isolation, they are insufficient to constitute a separate language. IMO, referring to legal language as a technical language is nothing more than a shorthand way of highlighting the fact that it includes so many technical terms. In this respect, the phrase technical language functions similarly to the phrase the language of the law.

It’s notable that the latter phrase is used by Tiersma, despite his belief that legal language is not a separate language. This supports the view that the label that is applied to legal language doesn’t necessarily reflect (much less determine) its true nature. But it seems to me that McGinnis and Rappaport’s paper takes precisely the opposite approach.

Interpretive rules

I argued in my original post that McGinnis and Rappaport weren’t justified in analogizing legal interpretive rules to what they referred to as the “interpretive rules” of ordinary language. One of my criticisms was that the word rule is polysemous and that it was used by McGinnis and Rappaport “to refer to two different phenomena”:

The “rules” that govern the process of comprehension are in reality just generalizations about how the process usually functions. Thus, they are better described using a word such as “regularities,” which McGinnis and Rappaport do use several times. But whatever the label, the fact remains that these phenomena do not depend on obedience to explicit commands issued by some authoritative source. Rather, they are emergent properties that arise from the normal functioning of human cognition.

Legal interpretive rules, on the other hand, are very different. They are promulgated explicitly by actors vested with institutional authority, and they are owed obedience, or at least deference, by other institutional actors. While the processes underlying comprehension are an inherent and essential part of using and understanding language, the rules of legal interpretation don’t come into play until the comprehension process is complete; their very existence depends on the interpreter’s ability to use and understand language.

McGinnis and Rappaport argue in response that compliance with legal interpretive rules might result from factors other than the fact that the rules are promulgated by lawmakers:

Once a rule becomes widely followed, it may come to be followed as part of how lawyers communicate. A rule might have legal authority in one context, but not in another, and be followed in the latter context as a linguistic matter. For example, a rule of statutory interpretation might be binding under the common law, but not under the Constitution, because the common law does not apply to it, yet still be followed as simply the way lawyers communicate in the language of the law.

As I understand this passage, McGinnis and Rappaport are arguing that a legal interpretive rule may be internalized by lawyers to such an extent that the rule helps to determine how they use and understand language. The argument is by its own terms speculative:

  • a legal interpretive rule “may come to be followed”;
  • it “might have legal authority in one context, but not in another, and be followed in the latter context as a linguistic matter”;
  • “a rule of statutory interpretation might be binding under the common law, but not under the Constitution, because the common law does not apply to it, yet still be followed as simply the way lawyers communicate in the language of the law”.

If these speculations are offered as merely hypothetical possibilities, I might have to admit the hypothetical possibility that they are correct. But I take McGinnis and Rappaport to be claiming that their analogy between legal interpretive rules and ordinary-language “interpretive rules” has an empirical basis. If that’s correct, then their argument isn’t advanced by the kind of speculation they offer. And if their response isn’t intended to be pure speculation, it’s still inadequate because it relies on vague generalities. Until they give some specifics, there’s nothing to evaluate and respond to.

McGinnis and Rappaport also challenge my argument on a more fundamental basis:

Goldfarb’s argument that legal interpretive rules cannot be linguistically compared to ordinary interpretive rules depends on a single claim: “The cognitive processes involved in comprehending an utterance or a text—which is to say, the processes that McGinnis and Rappaport call the “interpretive rules” of ordinary language—occur auto­matically, effortlessly, and, for all practical purposes, instantaneously. Moreover, these processes occur below the level of conscious awareness and inaccessible to introspection.”

But Goldfarb is mistaking a characteristic that sometimes accompanies ordinary interpretive rules (effortless cognitive processing) with an essential characteristic. Sometimes ordinary language documents require interpretation and the application of the interpretive rules are discussed and disputed. In law, this occurs much more often, because so much turns in the law on the precise meaning of texts. Moreover, because law is a more a written than a spoken language, there is more time for deliberation in applying rules just as there is in giving a precise meaning to its technical terms.  

This argument is difficult to respond to, because McGinnis and Rappaport still haven’t explained what they are referring to when they talk about the “interpretive rules” of ordinary language. This is somewhat surprising, considering that the lack of an explanation was something I complained about in my original post:

[McGinnis and Rappaport’s] attempts at explanation don’t tell us anything useful: interpretive rules are rules (other than the rules of grammar) “that tell [language users] how to interpret the language”; they are “the background rules that help decode the communication of a speaker or writer.” These are essentially tautologies: interpretive rules are rules that contribute to the process of interpretation.

With no meaningful explanation having been given in McGinnis and Rappaport’s paper, I tried to infer what they mean, by generalizing from the two examples of ordinary-language “interpretive rules” that they gave (which were as follows).

  • “[It] is normally thought that a speaker or writer will not contradict himself in a document. Thus, interpreters try to understand different provisions as consistent.”
  • “An example of an ordinary language interpretive rule is the rule that one assumes that an ambiguous term should be construed in accordance with the subject of an utterance.” The footnote to this sentence provides an illustration of this assumption in action: “[If] a speaker is talking baseball, then the statement ‘that should work on the diamond’ should be interpreted to mean the baseball diamond rather than a gem.”

My inference was that what McGinnis and Rappaport call “interpretive rules” are actually the cognitive processes involved in language-comprehension. Their response doesn’t say that I’m wrong about that, but when I read their statement that ordinary-language “interpretive rules” don’t necessarily involve effortless cognitive processing, I have to wonder whether we’re really on the same page.

As I understand the literature—and as I experience my own comprehension of language—these processes operate below the level of consciousness and therefore necessarily operate without conscious effort. In the philosophy of mind, a distinction is sometimes drawn between explanations that operate on the personal level (meaning that they are understood to relate to the person as a whole) and those that operate on the subpersonal level (meaning that they are understood to relate to some system internal to the person, such as brain processes). Under this approach, the processes underlying comprehension are subpersonal.

Here’s an example to illustrate what I’m talking about. Read the following sentences:

The police refused the students permission to demonstrate because they feared violence.

The police refused the students permission to demonstrate because they advocated violence.

Odds are (1) that in the first sentence, you understood the word they to refer to the police, and that in the second sentence you understood it to refer to the students, and (2) that you experienced those understandings without having any sense that you were deciding how to resolve an ambiguity (even though resolving the ambiguity was necessarily part of understanding the sentence). And note that the cognitive task involved in resolving that ambiguity are similar to the task that is involved in resolving the ambiguity in McGinnis and Rappaport’s baseball-diamond example.

So when McGinnis and Rappaport say that I am “mistaking a characteristic that sometimes accompanies ordinary interpretive rules (effortless cognitive processing) with an essential characteristic” (emphasis added), it raises doubts about whether we’re talking about the same thing. And the doubts get stronger when I read their next sentence: “Sometimes ordinary language documents require interpretation and the application of the interpretive rules are discussed and disputed.” The situation that is described there falls very clearly on the “interpretation” side of the comprehension–interpretation divide. So the fact that issues of interpretation might be “discussed and disputed” is entirely consistent with what I’ve said

Which brings us back to the question of what McGinnis and Rappaport mean by their reference to the “interpretive rules” of ordinary language. That’s never been clear, and their response only makes things worse.

Finally, McGinnis and Rappaport argue that “even if ordinary interpretive rules were effortless while legal interpretive rules were not, that would not prevent legal interpretive rules from being part of the language or its context.” Their only explanation for that conclusion is the following: “In both cases, they have the similar function of telling the reader how to interpret the language. The effortlessness is largely besides the point.”

There is a word in The Language of the Law that describes this kind of argument: conclusory. I’m tempted to respond in kind and say simply, “I disagree.”

But instead, I’ll finish up by referring you to a paper by Robyn Carston, a leading figure in the approach to pragmatics known as Relevance Theory. The paper discusses the possibility of drawing on Relevance Theory in legal interpretation—a topic that substantially overlaps what we here at LAWnLinguistics try to do.

After describing Relevance Theory’s broad outlines, Carston notes that “one might well wonder what bearing any of this has on the issues of legal interpretation,” since Relevance Theory is “an account of automatic online processes of interpretation which occur (for the most part) at an unconscious ‘subpersonal’ level,” whereas analyzing disputed questions of statutory interpretation involves “conscious, highly reflective, ‘person’ level activities.” But she believes (as do I) “that an understanding of the underlying cognitive processes of interpretation should (ultimately) be helpful in providing some better grounded explicit guidance in (at least some) cases of disputed interpretation”. However, it is not a simple task to figure out how and to what extent Relevance Theory—and by extension, linguistics more generally—can be incorporated into legal interpretation. That, as Carston says, is “a very big issue[.]” “To extrapolate validly from the one kind of interpretive process to the other and to provide cognitively grounded reasons for favoring a particular interpretation in the case of an explicit interpretive dispute is an important challenge….”

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